Why are we encouraging the police to break the law?
As the agency responsible for upholding the law it is obvious that the police have a duty to operate within the law.
It is now public knowledge that the police in New Zealand have been illegally using video surveillance for some years.
The Supreme Court
The Supreme Court's decision in the Hamed case is fairly scathing of the police's deliberate flouting of the law. The Chief Justice wrote:
In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.
However, even after writing these stern words the Supreme Court's decision went on to say that this illegally obtained evidence could still be used in court if the alleged crime was sufficiently serious.
The fix-up law
The Government's reaction was to propose a law that would not only allow the police to keep using video surveillance, but would also retrospectively grant them permission, legitimising their past illegal behaviour. The outcry against this led to the law being watered down somewhat, but it still gave the police the power to legally do what they had been doing illegally.
Why obey the law?
The question has to be – why should the police follow the laws around search and surveillance when:
- the courts will accept the illegally collected evidence,
- no one in the police will be punished for breaking the law,
- if the police do it enough, the government will pass a law to make it legal.
Isn't this missing the point of having limitations in the first place? Aren't we just saying that the police can do whatever they like unless it is expressly prohibited?
In our society it is the people, through Parliament, who get to decide the law and not the police. If the police set themselves up as superior to Parliament and Parliament acquiesces we risk the slow slide into becoming a police state.
Tainted evidence
The police probably don't think they're bad people for breaking the law – after all, they're trying to catch criminals. Indeed they see themselves as the good guys, doing what has to be done to keep people safe. The fact that the courts can accept the evidence provides tacit permission for the police to continue with their illegal behaviour. Catching and convicting criminals is incentive enough.
If the courts rejected this evidence this would remove the incentive for the police to break the law. This is the actual situation in the USA where all illegally obtained evidence is excluded under the "fruit of a poisonous tree" doctrine.
Of course this can lead to the situation where police misconduct can end up in a criminal escaping conviction. However, we already accept this in New Zealand. The main difference here is that instead of a hard and fast rule we leave it up to the judge to decide based on section 30 of the Evidence Act. This already says that the judges should consider "the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith" but it seems clear that they are not giving sufficient weight to it.
We believe that this law should be changed so that deliberate police misconduct leads to the evidence being excluded. Anything else will just encourage the police to keep operating outside of the law.
Punishing the police for breaking the law
If the police have been engaging in wilfully breaking the law – why have the police officers involved not been charged or punished? If the courts accepting illegally obtained evidence is an incentive, the lack of any punishment when caught means that there is no reason not to break the law.
The police have legal powers that other people do not. This surely means that are to be held to a higher standard of behaviour, to ensure that these powers are not abused. When they are abused there needs to be repercussions that will discourage others from doing the same. Moreover, it is unacceptable for people with this lax attitude towards obeying the law to continue working in the police force. The proper
Conclusion
The current situation is unacceptable in a democracy. The police are tasked with upholding the law and shouldn't be breaking it instead. We need to remove the incentives to them breaking the law and ensure that they are punished when they do.
We believe that the law be changed so that evidence is automatically excluded where the police have deliberately flouted the laws in the collection of that evidence.
We further believe that members of the police who deliberately break the law should be charged and, if convicted, lose their jobs. Criminals, even though well intentioned, have no place in the New Zealand police force.